THE DECISION IN MARBURY V. MADISON could not have been a more obvious act of pure partisanship, a continuation of the scheme in the last days of John Adams, the first and last Federalist president, to control the future of the country through the appointed judiciary instead of the elected branches from which the Voters had overwhelmingly overturned his party's control of the presidency and Congress.
By 1803 it was probably obvious that the Federalists, THE PARTY OF ALL OF THE MEMBERS OF THE SUPREME COURT THAT YEAR, AND ALL FOUR OF THOSE WHO DECIDED THE MARBURY CASE, were not likely to control the federal government for at least the future foreseeable from that year. The party broke up within the next ten years. As it turned out, the reaction against the party of the Court majority and its influence for the next decades was strong enough and the opposition to the Court trying to rule the country from the bench so fresh that Marshall and his like-minded colleagues didn't dare to try to use their invented power to legislate from the bench much.
That disastrous use of the Marbury power came with those other opponents of equality and democracy and freedom on the Taney and later Courts. The Roberts court is the New Taney Court, on the road to outdoing even that notorious slave-power majority in taking a wrecking ball to democracy and even the United States as a republic instead of a monarchy (don't get me started on the Federalist Hamilton).
In the last days of John Adams'* administration and their control of the Congress, they pushed through the Judiciary Act of 1801 (remember, back then new presidential terms started in March, not January), creating six federal judicial districts and packing those with Federalist judges. Marbury was one of the very last judicial appointments made by Adams to pack the judiciary and continue their control of the federal government AGAINST THE EXPRESS WILL OF A LARGE MAJORITY OF THE VOTERS IN THE ELECTION THAT THREW HIM AND HIS PARTY OUT OF OFFICE. Though the Senate under Federalist control had confirmed all of them, John Marshall, Adam's Secretary of State, had not delivered the commissions of the last few of them - he was, perhaps, busy with his own last-minute appointment to be Chief "Justice" of the Court by Adams and the Federalist majority in the Senate who would lose control on the following day. He would take over from the quite putrid Oliver Ellsworth who had, himself, been one of the major members of the Federalist Party.
It strains the last drop out of credulity to claim the Marbury v. Madison ruling IS not part of the same campaign of control OVER THE FEDERAL GOVERNMENT, OVER A CONGRESS AND PRESIDENT OF AN OPPOSING PARTY BY JUDICIAL FIAT, by a party, many members of which scorned and hated democracy (Adams, Ellsworth, Hamilton, etc.), supported a highly centralized federal government, favored the wealthy over the large majority who were not wealthy. Sound familiar?
We have seen the billionaire-millionaire financed effort to do exactly the same thing in the wake of the backlash over the 1960s push for egalitarian democracy and, especially, since the putrid tobacco-lawyer Lewis Powell wrote his corporate-fascist blueprint for controlling the federal government with nearly identical tactics. What Senator Whitehouse calls "court capture" knowing that that has been the most successful tactic of the enemies of equality, democracy and economic justice to keep control no matter how much of a reaction against their interests by the Voters voting in the supporters of those things.
The Supreme Court was born in politics - neither Washington, not "officially" a Federalist but one who, oddly, along with Adams appointed only Federalists to the Court - partisanship (op cit), it has been partisan its entire existence and frequently you don't even have to look under the covers of their judicial speak to see that in their rulings. Any such supportable case that they were not partisan in this action or other, is certainly a quirk of personality or of change while on the Court. In living memory the only cases I can think of when that was true was through rare Republican appointees such as, and not in every decision, Stevens and Souter and several of the Democratic appointees. Though I think a number of their rulings which could be considered as favoring Democrats turned out be fodder for the Republican-fascists, I don't think they're particularly deep thinkers, in general. I think the Marbury and many of the other foundational decisions of the Court in that era have set us on a course of judicial decadence which is seen in every cheap trick that those idiots in black robes fall for, the thing which got Trump where he is today.
And even if they made such rulings with the best of intentions, the Marbury power and others that they have introduced means that they can just lie about anything and, as Glen Kirschner said in that video posted here yesterday, they can just make it up to suit whatever result they want. And they have been doing that since at least the time of Marshall. The best of intentions by the Warren Court have been turned into weapons against equality, democracy and justice by the Court. Look at the use the white-supremacists make of the words of Martin Luther King jr. and such mythical notions as "colorblindness" which the Court, the "justices" and the Constitution, and even a large segment the Voters never have demonstrated. They are fluent liars, the mother tongue of their profession.
The Marbury power will have to be nullified by the representatives of We the People or it will destroy any hope for equality and, with that, true democracy and such things as the economic justice that will only come with egalitarian democracy. It was a power born to thwart democracy, it has been a tool to destroy any progress to real democracy. We can't rely on the amendment process for all of the reasons I have set out in the posts on this topic. We can rely on future courts merely lying about what any such amendments say as they have made an industry of with, especially, the 14th Amendment but with all the others as well.
* Those of us who remember the kind of weird 1990s historical revisionist view of John Adams that came about through one somewhat reputable academic biography-hagiography and a few popular hagiographic best-sellers (NYT promo-jobs, as I recall) may be surprised to see my criticism of him. If he can be said to have been any kind of supporter of democracy before his court-packing in order to have his party rule against the will of the voters - an ACT, not mere aspirational verbiage - demonstrates the opposite.
No comments:
Post a Comment